Patents and designs
Intellectual property for start-ups and small or medium-sized enterprises (SMEs) might mean branding, customer data, tech, software or even apps. All of these and more form an integral part of the commercial value of such companies and are worth protecting. The goal of this article is to outline some of the basics in this regard.
To begin with, the intellectual property with which start-ups and SMEs are most likely to be concerned are:
- patents and designs; and
A trademark is intended to protect a device, name, signature, word, series of letters, set of numerals, shape, configuration, pattern, ornamentation, colour or container – or any combination of these – that acts as a badge of origin for goods or services.
It may be registered (and feature the ® symbol) or unregistered (and feature the TM symbol). Trademark protection covers both identical and similar marks and, in South Africa, lasts for 10 years, after which renewal is possible.
Trademarks (also known as "service marks") can also be registered for services such as engineering, computer programming, advertising, banking and insurance, leasing, entertainment, hotels, restaurants and beauty salons. In these cases, service marks distinguish a service as opposed to a product.
Where to start?
To benefit from trademark protection in South Africa, parties should:
- conduct a search (parties may wish to start with the Companies and Intellectual Property Commission's IP Online portal, although there are great benefits to instructing an IP attorney to conduct a comprehensive search);
- file an application, with the help of an IP attorney; and
- maintain the trademark – again, with an IP attorney's help.
Note that domain names, company names and social media handles will reflect a company's main trademark, so parties should secure those too.
While a patent protects a novel and inventive process, machine, system, device, new material or chemical composition, and lasts for 20 years in South Africa, a registered design protects the physical form of an article of manufacture. The latter is more concerned with how the item looks than how it works, and lasts for 10 or 15 years in South Africa, depending on the specifics.
Where to start?
If a party suspects its process, product or design to be worthy of IP protection, it should avoid disclosing the details thereof publicly and contact an IP attorney.
Parties should be aware that, in South Africa, a registered design is generally easier to obtain, quicker to register and easier to enforce than a patent. In instances where competitors are likely to ride on the back of a company's efforts by simply copying its design, it can be beneficial to use a registered design to obtain enforceable rights quickly, while a patent application may take longer to proceed to grant. The same strategy may be used to get design protection quickly for some trademarks while a trademark registration is pending.
When an idea becomes a work that is expressed in a material form, it could automatically be protected by copyright in South Africa, depending on the kind of work. This form of IP protection prevents others from copying or adapting the work without the author's authorisation.
However, it is not possible to register copyright, apart from films, in South Africa. Copyright exists automatically when the work is created if the work is original and fits into a category that is recognised and protected by the Copyright Act, such as literary works (written text), artistic works (logos), computer programs (apps), musical works, cinematograph films, sound recordings, broadcasts and programme-carrying signals.
The exact duration of protection depends on the type of work concerned, but is generally a period of at least 50 years from the end of the year in which the author dies.
Where to start?
To prove that it is the creator of an original work, a party may need to:
- show supporting evidence as to the progression of the work (eg, early drafts, sketches, synopses or rough recordings);
- ensure that the work is properly marked and dated; and,
- in the case of a joint venture, clearly stipulate, in writing, who will own what rights and what happens when someone exits the relationship.
The © symbol is an indication that copyright has been claimed. In the past, some countries had legislation in place that required parties to include it but today, very few countries – including South Africa – include the use of such symbols as a legal requirement.
In addition to protecting intellectual property from third-party infringement and exploring intellectual property commercially, parties should also be aware of others' IP rights. This will help to ensure that parties not limited in, or even prevented from, operating their business in a particular manner.
For further information on this topic please contact Kim Pietersen at Spoor & Fisher by telephone (+27 12 676 1111) or email ([email protected]). The Spoor & Fisher website can be accessed at www.spoor.com.